Can A Wife Sell Deceased Husband's Property (6 Rules)
By Larry Li
September 7, 2022
Your husband’s death can be the most heart-wrenching challenge you’ll ever have to face. On top of it all, you have to figure out the laws surrounding his property and ownership to proceed with your personal financial affairs.
So, can a wife sell a deceased husband’s property?
If you are named as the property’s beneficiary in your husband’s will, you have the right to sell your deceased husband’s property. However, the recorded title of the property must be cleared of your husband’s name, officially transferring his interest in the property.
When a husband passes away, a lot of work must be done. Whether you and your husband held property jointly or your husband has a will, there are different procedures for a wife’s share in her husband’s property after death.
This comprehensive guide explains:
What happens to the property if your spouse dies
If you can sell the property after your husband’s death
How to plan ahead with Trustworthy
What Happens to Property If My Spouse Dies?
In most cases, the spouse’s will determines what happens to their property. So, you must look over the will with an attorney to see if you’re entitled to their property. However, if your husband didn’t have a will, you may automatically inherit the property, depending on your state’s laws.
What Does the Will Say?
Generally, a married couple’s estate plan includes identical wills, each naming the other individual as executor of the deceased person’s estate. Furthermore, estate plans should address property distribution upon the death of either spouse.
Therefore, if your deceased husband has a will, you can take sole ownership of the property by executing the will. So, get a copy of the will and read it to understand your beneficiary rights.
What If There's No Will?
A person who passes away with a valid will has died intestate (the technical term for dying without a will).
In this case, the property passes through your state’s intestate succession statute. Usually, someone in the family must step forward for an appointment as a personal representative to handle the estate’s affairs.
Your husband’s assets will be divided upon how he owned them. Although community property goes entirely to you as the spouse, separate property may be divided among you, his siblings, and his parents.
As such, if your husband died without a will or trust, probate law prevails, and you should contact a trust attorney for further assistance.
Are You Joint Tenants?
If the property is jointly owned by both yourself and your deceased husband, the right of survivorship may automatically pass to you upon your husband’s death.
However, it depends on your specific state’s statutes. Property distributed in this manner is called tenancy by the entirety. Again, a trust attorney will be able to provide further assistance according to your specific situation.
Can Wife Sell Property After Husband's Death?
Most states use the common law system for property ownership. In these states, it’s easy to see which spouse owns what. You can simply look at the registration documents, deeds, and other title papers. If you’re the only person named, the property is yours, and you are free to sell it.
1. Revocable Living Trust
Transferring ownership and selling the property is a simple process if the property is in your husband’s revocable living trust.
You must file a signed affidavit with the local county records and provide a death certificate for your deceased husband.
This establishes the fact that he’s no longer serving as the trustee. It also designates you to convey the title of the property.
2. Community Property vs. Separate Property
Spouses usually own two types of property: community property and separate property.
Community property belongs to both spouses equally and includes the assets acquired throughout the marriage by either or both spouses.
On the other hand, separate property consists of any assets a spouse owned before marriage and property acquired during the marriage by inheritance or gift.
3. Joint Ownership
If you and your husband had joint ownership of the property, meaning both names are on the title, you each own a half-interest in that property.
In the event of your husband passing away, you have the freedom to give away or leave the half-interest, depending on how you and your spouse shared ownership.
4. Joint Tenancy
Suppose you own the property in joint tenancy, also known as joint tenancy with the right of survivorship. In that case, the property automatically belongs to you as the surviving spouse when your husband dies, no matter what his will states.
However, if you own the property in a tenancy in common, your husband can leave his half-interest to someone other than the spouse. You can record an Affidavit of Death of Joint Tenant in the county records office to clear his title to the property.
The affidavit establishes the facts necessary that you own and can sell the entire house as the surviving spouse.
5. Sole Ownership
If you want to sell the property, but the title is in your deceased husband’s name, you must petition the court for a court order establishing ownership for you as the surviving wife.
Suppose your husband didn’t have a will or had a will stating that his interest in the property passes to you. In that case, you can undergo an abbreviated procedure called a Spousal Property Petition to transfer your husband’s interest to yourself. This is a faster alternative to the probate process.
6. Contact an Estate Attorney
The best way to determine if you can sell your deceased husband’s property is by contacting an estate attorney. There are too many variables and different state statutes that make it impossible to determine if you’re entitled to selling the property without legal counsel.
Plan Ahead With Trustworthy
In summary, the designation of your husband’s property depends on a combination of state law, your husband’s last will and testament, his revocable living trust, irrevocable trusts, payable on death account designations, and much more.
Therefore, the best way to handle post-death financial affairs is to prepare for the future with an innovative tool like Trustworthy.
Trustworthy is a digital storage platform built for the modern-day family. You can use Trustworthy to plan, organize, store, and securely share your family’s estate planning documents. This way, you can easily find out if you can sell a family member’s property once they pass away.
In addition to estate planning, you can use Trustworthy to store and manage your family’s IDs, passwords, and all other important files and documents.
Trustworthy (Click here to try a 2-week free trial) offers a simple way to ensure your family’s affairs are appropriately handled in the case of death.